US v. Ira Thorpe
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00407-WO-1 Copies to all parties and the district court/agency. .. [16-4577]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
IRA LEE THORPE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00407-WO-1)
February 9, 2017
March 1, 2017
Before TRAXLER, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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agreement, to one count of being a felon in possession of a
The district court sentenced Thorpe to 24 months and 1
day of imprisonment, and he now appeals.
Appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
supplemental brief contending that his conviction violates both
the Second Amendment as applied to him and due process.
answers when imposing sentence.
Because Thorpe did not raise
this objection in the district court, we review for plain error.
To establish plain error, Thorpe must demonstrate that
(1) the district court committed an error; (2) the error was
(4) the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.”
Puckett v. United
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“Before imposing sentence, the court must . . . address the
defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.”
Crim. P. 32(i)(4)(A)(ii).
A court may interrupt a defendant’s
allocution to ask questions so long as there is no indication
that the court is attempting to terminate the allocution and the
See United States v. Covington, 681 F.3d 908, 910 (7th
Cir. 2012); cf. United States v. Li, 115 F.3d 125, 133-34 (2d
Cir. 1997) (holding that defendant was denied opportunity for
Furthermore, a court may increase a
defendant’s sentence based on comments made during allocution if
the comments are relevant to the 18 U.S.C. § 3553(a) (2012)
See United States v. Smith, 424 F.3d 992, 1016-17
(9th Cir. 2005); United States v. Burgos-Andujar, 275 F.3d 23,
30-31 (1st Cir. 2001); Li, 115 F.3d at 134-35.
allocution to question him and referenced Thorpe’s answers in
setting the downward variance sentence, we discern no error.
responsibility and others were of questionable veracity.
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appropriately considered those statements in fashioning Thorpe’s
sentence under § 3553(a).
Thorpe also argues that his conviction violates the Second
Amendment as applied to him because his felony drug convictions
are over 20 years old and he does not have a history of violent
Thorpe’s contention is likely waived by his guilty
See United States v. Fitzgerald, 820 F.3d 107, 110 (4th
Cir. 2016) (recognizing that “when a defendant pleads guilty, he
conducted prior to entry of the plea” (alterations and internal
quotation marks omitted)); United States v. Seay, 620 F.3d 919,
922 n.3 (8th Cir. 2010) (holding as-applied Second Amendment
States v. Fox, 573 F.3d 1050, 1052 n.1 (10th Cir. 2009) (same).
conclude that the claim lacks merit.
Although we have left open
§ 922(g)(1), United States v. Moore, 666 F.3d 313, 320 (4th Cir.
“law-abiding responsible citizen requirement.”
United States v.
Pruess, 703 F.3d 242, 246 (4th Cir. 2012) (internal quotation
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Lastly, Thorpe avers that his conviction violates his “due
process reliance interests.”
When Thorpe pled guilty in North
Carolina state court to the felony drug offenses that served as
the predicates for the instant conviction, state law prohibited
Thorpe from possessing firearms for five years after his release
Like Thorpe’s Second Amendment claim, his due process claim
was likely waived when he pled guilty.
See Fitzgerald, 820 F.3d
Notwithstanding, we conclude that Thorpe’s argument
fails on the merits.
Because Thorpe’s right to possess firearms
proposition that a felon retains a due process interest in the
See Johnston v. State, 735 S.E.2d 859, 876 (N.C. Ct.
App. 2012) (“No federal or State case has held that a convicted
process claim fails.
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record in this case and have found no meritorious issues for
This court requires that counsel inform Thorpe, in writing, of
the right to petition the Supreme Court of the United States for
If Thorpe requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
Counsel’s motion must state that a copy thereof
was served on Thorpe.
We dispense with oral argument because the facts and legal
this court and argument would not aid the decisional process.
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